Legal History Commons^™

The Pentagon Papers - Victory For A Free Press, William R. Glendon

Cardozo Law Review

No abstract provided.

Pandora's Amphora: The Ambiguity Of Gifts, Jeanne L. Schroeder

Articles

The law is notoriously suspicious of gifts, giving gratuitous promises less protection than contracts. An analysis based on the political philosophy of G.W.F. Hegel and the psychoanalytic theory of Jacques Lacan reveals that the law's ambivalence reflects the fundamental ambiguous nature of gifts.

The two dominant jurisprudential analyses of gift-utilitarianism and romanticism-share the single erroneous assumption that contract relations are characterized by atomistic rational behavior. The utilitarian, who views all human relations in terms of individual self-interest, analyzes gift as a primitive, incomplete, imperfect, and inferior form of contract. In contrast, the romantic, who believes that human relations can, and …

"A Revolution Which Seeks To Abolish Law, Must End Necessarily In Despotism": Louisa Mccord And Antebellum Southern Legal Thought, Alfred L. Brophy

Cardozo Journal of Equal Rights & Social Justice

Louisa McCord's essays provide a unique lens into the legal and political thought of antebellum Southern society, particularly her defense of slavery and the role of law in maintaining social order. She argued that law should ensure basic fairness in market transactions but should not interfere with the institution of slavery, which she viewed as a matter of sentiment rather than legal regulation. McCord's work challenges the notion that legal history is confined to the common law tradition, emphasizing the importance of understanding law as part of a broader societal outlook.

History Of Indian Broadcasting Reform, Sevanti Ninan

Cardozo Journal of International and Comparative Law

The article explores the historical evolution of broadcasting reform in India, highlighting the tension between state control and the constitutional guarantee of freedom of speech under Article 19. It traces the development from colonial-era laws like the Indian Telegraph Act of 1885 to modern legislative and judicial efforts to balance public interest, cultural preservation, and technological advancements. The analysis underscores the recurring themes of autonomy for state media, competition from private and foreign broadcasters, and the need for regulatory frameworks to address these challenges.

Doordarshan, Public Service Broadcasting And The Impact Of Globalization: A Short History, Nikhil Sinha

Cardozo Journal of International and Comparative Law

The article examines the transformation of India's public service broadcasting system, particularly Doordarshan, in the context of globalization and economic liberalization. It argues that the shift from a state-dominated to a market-oriented economy has led to increased commercialization of broadcasting, threatening the traditional public service mission of Doordarshan. While structural reforms like the implementation of Prasar Bharati aim to grant greater autonomy, the pressures of commercial competition and political influence continue to challenge the balance between public interest and market demands.

Trends In Indian Media And Prospects For Broadcasting Reform, Rishab Aiyer Ghosh

Cardozo Journal of International and Comparative Law

The article argues that India's media market, despite immense latent demand driven by its large population and growing economy, is stifled by government-imposed monopolies and restrictive policies. While technological advancements and private sector growth have created opportunities for competition, the government's reluctance to liberalize media regulations and its focus on maintaining control over content and distribution hinder the market's potential. The article critiques the proposed Broadcasting Bill for prioritizing political and economic interests over free expression and market efficiency, urging a shift toward policies that foster competition, innovation, and decentralized media infrastructure.

Justices At Work: An Introduction, Michel Rosenfeld

Cardozo Law Review

"Justices at Work," a day long conference which took place on September 19, 1995 at the Benjamin N. Cardozo School of Law, brought together Justices and constitutional scholars from seven different countries to consider a hypothetical constitutional case dealing with fundamental rights. This issue of the Law Review includes the facts of the hypothetical case, the applicable hypothetical statute, the briefs submitted to the International Moot Courtall of which were the product of a collaborative effort among the seven scholars involved-as well as a transcript of the proceedings and of the deliberations of the seven Justices: Justice Ruth Bader Ginsburg …

Law And Iconomics, Jeanne L. Schroeder, David G. Carlson

Articles

Peter Goodrich's Oedipus Lex critically examines the English common law tradition through a psychoanalytic lens, revealing a 'legal unconscious' that underscores deep-seated repressions and contradictions. He argues that common law has historically attempted to exclude imagery and the feminine, yet these elements persist, leading to internal conflicts. By analyzing historical legal texts from the Elizabethan and Jacobean periods, Goodrich exposes violent rhetoric against enemies of the common law, such as Catholics and women, highlighting the law's struggle with its own unconscious structures.

The Repeal Of The Financial Interest And Syndication Rules: The Demise Of Program Diversity And Television Network Competition?, Marc L. Herskovitz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Constitution's Pragmatic Balance Of Power Between Church And State, Marci A. Hamilton

Articles

No abstract provided.

Roman Slave Law: An Anglo-American Perspective, Alan Watson

Cardozo Law Review

The most influential secular system of law in the West has been Roman private law. This is true even of its slave law, which was received not only in states of Europe where slavery survived, but also in European colonies in America, whether those of Spain, Portugal, France, or the Dutch West India Company. Though slavery had died out in France and the Dutch Republic, when slavery appeared in the colonies, recourse was had above all to Roman law.

The First Slave (And Why He Matters), Jonathan A. Bush

Cardozo Law Review

This Article has two purposes. The narrower, straight historical purpose is to explore in further detail the status of blacks in the earliest years of Britain's colonies in the New World. The second, more legal aim is to explore what is, for many of us, still the hardest question in American legal history: namely, to understand the route by which slavery came to be legal in the early seventeenth century, in a culture that had long rejected unfree status and that seemed to retain that view.

Gender In The Law Of Slavery In The Antebellum United States, Andrew T. Fede

Cardozo Law Review

In her thought-provoking paper Finding Sojourner's Truth: Race, Gender, and the Institution of Property, Cheryl I. Harris explores the connections between slavery, race, and gender in the law of the antebellum United States. Harris acknowledges that slaves alone were defined as property at law, and, therefore,*the legal status of slaves differed from free white women and free black women. She also acknowledges that "white women" were allowed property rights on "male-defined terms" but asserts, nevertheless, that free women could be considered as a form of property.

Comment On Hans Baade’S The Gens De Couleur Of Louisiana: Comparative Slave Law In Microcosm, Morris S. Arnold

Cardozo Law Review

Hans Baade invented colonial Louisiana legal history. Before he started doing research in the eighteenth-century records in New Orleans and elsewhere, virtually no serious historical work involving the judicial and notarial archives of colonial Louisiana had ever been done. Professor Baade also undertook years ago to trace the various French and Spanish statutory enactments that bore on Louisiana legal history, and this proved to be a virtually impenetrable mare's nest. Before Professor Baade began his work, most of what had been written about Louisiana's colonial legal past was both amateurish and antiquated. It should therefore come as no surprise that …

Abolitionist Feminism, Moral Slavery, And The Constitution: “On The Same Platform Of Human Rights”, David A.J. Richards

Cardozo Law Review

The analogy between race and gender plays an increasingly important role in the interpretation of the Equal Protection Clause of the Fourteenth Amendment. However, interpretive arguments about the analogy make little or no reference to the abolitionist historical background of the Reconstruction Amendments in general and the Fourteenth Amendment in particular. This might make some sense if the only legitimate interpretive appeal to history were Raoul Berger's version of originalism, namely, the specific denoted things (including persons and practices) to which the relevant drafters and ratifiers of the pertinent constitutional text would or would not have applied the language in …

Finding Sojourner’S Truth: Race, Gender, And The Institution Of Property, Cheryl I. Harris

Cardozo Law Review

This Article begins with the signature speech of Sojourner Truth, one of a handful of Black women of the nineteenth century who became an important figure in the abolitionist movement, a national figure in her own time, and an icon of both historical and contemporary feminism. As the emblematic Black woman of her time and as a Black woman that both suffered under and transcended slavery, Sojourner Truth was and is a critically situated subject through which to examine the crosscutting constructions of race and gender forged under slavery.

Comment On The First Slave (And Why He Matters) By Jonathan Bush, Peter Kolchin

Cardozo Law Review

In his Article The First Slave (And Why He Matters), Professor Jonathan Bush returns to a persistent question in the history of the colonial Chesapeake: the status of blacks in the seventeenth century. He frames this question, however, in a new way. Rather than seeking to determine whether or not blacks were slaves before the codification of slave law-a largely unanswerable question that revolves, at least in part, around what one means by "slaves"-he asks, how could the English have imposed slavery on blacks in America when slavery was non-existent in England and under English law? In response, he …

“So Tall Within” - The Legacy Of Sojourner Truth, Peggy Cooper Davis

Cardozo Law Review

I take my text from Professor Harris's rich discussion of Sojourner Truth's life narrative. I begin, as Professor Harris began, with Truth's assertion of parental right. When her five-year-old son, Peter, was sent by his owner from New York to Alabama, Truth agonized over the loss of contact between herself and her child. She feared that Peter would lose the opportunity, owed to him under New York law, of liberation at the age of twenty-one. Truth's insistent cry, "I'll have my child again," was initially dismissed by incredulous slaveholders. But it became a theme of struggle as she repeatedly walked …

Hegel’S Slaves, Blackstone’S Objects, And Hohfeld’S Ghosts: A Comment On Thomas Russell’S Imagery Of Slave Auctions, Jeanne L. Schroeder

Cardozo Law Review

Thomas Russell's wonderful paper A New Image of the Slave Auction is an example of how the best empirical work can result in conclusions that are so obviously "right" that they risk being mistaken as obvious. His paper serves as an important warning against a recurring problem in legal, as well as other scholarship: Picture thinking-in the sense of an unconscious (and as a result, unquestioning and uncritical) acceptance of familiar, traditional, comfortable imagery-so often blinds us.

Property, Parenthood, And Peonage: Reflections On The Return To Status Quo Antebellum, Margaret A. Burnham

Cardozo Law Review

Cheryl Harris demonstrates how intertwining racial and gender boundaries, whose shadows are long, longstanding, and ominous, were initially constructed around the legal principle of human chattel as personal property. She insightfully argues that slavery inextricably linked the concepts of race and property in the American legal imagination; that property originates from rules that are "racially coded" and determined. Cheryl Harris's contribution to this Symposium is a continuation of her project of illuminating how law ratifies and implements a racialized conception of property. This comment considers the application of Professor Harris's argument, that property, in the context of race-based slavery, is …

What’S Pragmatic About Legal Pragmatism?, David Luban

Cardozo Law Review

Does legal pragmatism have anything at all to do with pragmatism? Both Thomas Grey and Richard Posner seem to suggest that in important respects the answer is no. Grey tells us that even a devout anti-pragmatist in matters ontological can endorse legal pragmatism, while Posner adds the converse, that pragmatic philosophy may at times impel a judge to decide cases like a formalist. These conclusions suggest that talk of legal pragmatism may simply be a pun on what philosophers take pragmatism to be. Lest this appear a far-fetched suggestion, remember that in philosophy the word "realism" often refers to the …

The Unlikely Hero Of Dred Scott: Benjamin Robbins Curtis And The Constitutional Law Of Slavery, Earl M. Maltz

Cardozo Law Review

The standard account portrays Dred Scott v. Sandford as a story of villains and heroes. The villains are the members of the majority, led by Chief Justice Roger Brooke Taney, who concluded that descendants of slaves could never become citizens of the Union and that Congress could not outlaw slavery in the territories. The heroes, on the other hand, are the two dissenters, John McLean and Benjamin Robbins Curtis, who rejected these conclusions and determined that Scott should be deemed a free man. McLean's opinion, however, was not tightly reasoned and was rather clearly designed to advance his presidential ambitions; …

Comment On Earl Maltz, Kenneth M. Stampp

Cardozo Law Review

Professor Earl Maltz has written an excellent brief account of Benjamin R. Curtis's judicial record as it relates to slavery, including his dissenting argument in the famous Dred Scott case. He found Curtis to be a perfect example of mid-nineteenth century Northern conservative Whigs-the "Cotton Whigs," as their antislavery critics called them. They disliked slavery, but, in equal measure, they disliked those who agitated against it. Both Southern proslavery extremists and Northern abolitionists appalled them, for both groups endangered the Union. Conservative Whig President Millard Fillmore would not have appointed Curtis to the Supreme Court if he had shared the …

The Slavery Of Emancipation, Guyora Binder

Cardozo Law Review

The Thirteenth Amendment of the U.S. Constitution commands that "neither slavery nor involuntary servitude shall exist." What has been the effect of this command?

It will serve my present purpose to offer the following toosimple answer to this complex question: the Thirteenth Amendment secured little more than the manumission of slaves already practically freed by the friction of war. It guaranteed, in Confederate General Robert Richardson's now well-known phrase, "nothing but freedom."

Supposing this answer to be true, a further question presents itself: Did the Thirteenth Amendment's effect fulfill its command? Did universal manumission abolish slavery?

A full answer to …

Bondage, Freedom & The Constitution, Eric Foner

Cardozo Law Review

Linking the papers on this most interesting panel are questions that center on the meaning of freedom. What is freedom? Who has the power to define what freedom is? What are the consequences of slavery and its abolition for Americans' understandings of freedom? In one way or another, these papers, as well as many others in this conference, illuminate these questions.

From Slaves To Citizens: African-Americans, Rights Consciousness, And Reconstruction, Donald G. Nieman

Cardozo Law Review

Addressing a racially mixed jury selected to try Ku Klux Klansmen in federal circuit court in Columbia, South Carolina in 1871, United States Attorney Daniel T. Corbin highlighted the dramatic changes that the previous decade had witnessed. "Gentlemen," he remarked, "we have lived over a century in the last ten years." Corbin did not exaggerate. The Civil War and Reconstruction years witnessed changes as revolutionary as any the nation has ever experienced. And nowhere were the changes as sweeping as in the realm of constitutional law.

Comment On Donald Nieman's Paper, Randall Kennedy

Cardozo Law Review

I have two responses to Professor Neiman's paper. One emphasizes a point he makes. The other disagrees a bit with his reading of the promise of Reconstruction.

Black Suffrage And The Redefinition Of American Freedom, 1860-1870, Xi Wang

Cardozo Law Review

One of the most important outcomes of the Civil War was the establishment of a new constitutional order. Under this new order, African Americans, a people whose essential human rights had been denied under the old constitutional order, were constitutionally emancipated from slavery and recognized as American citizens. They received the privileges and immunities that white Americans had automatically assumed. Male black Americans also received the right to vote. This new order, as embraced by the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, was a truly remarkable achievement of Reconstruction. What is additionally significant is that these Amendments became …

The Fifteenth Amendment And "Political Rights", Akhil Reed Amar

Cardozo Law Review

Professor Xi Wang has offered us an altogether exemplary paper on black suffrage. Rather than trying to criticize it, I shall attempt to extend it by picking up where he left off. My main text is the Fifteenth Amendment. I would like to suggest that the best interpretation of the Fifteenth Amendment would read it as encompassing a cluster of political rights; the Amendment protects not only the right to vote, but also the right to hold office, the right to be voted for, the right to vote in a legislature, the right to serve on a jury, and even …

Comments On James Oakes, “The Compromising Expedient”, Robert A. Burt

Cardozo Law Review

Professor Oakes's excellent paper convincingly characterizes the 1787 Constitution as a reactionary abandonment of the antislavery ethos of the 1776 Revolution that had appeared to set the new country on a course toward the abolition of slavery. "What," he asks, "accounts for the Constitution's failure to promote the cause already pushed so far by the Revolution?" If we could answer this question, we might not only explain the reactionary falling away from the Revolution, but also shed light on the historically parallel phenomena that Oakes identifies at the end of his paper-the abandonment of the emancipatory impulse from the Civil …